1418578 (Migration)

1418578 (Migration) [2015] AATA 3908 (23 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Wei Rong & Hui Rong Chen Partnership
VISA APPLICANTS:  Ms Zhuanlan Chen
Mr Yuexing Li
Ms Wanrou Li
CASE NUMBER:  1418578
DIBP REFERENCE(S):  BCC2014/1845912
MEMBER:Dione Dimitriadis
DATE:23 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.
Statement made on 23 December 2015 at 2:37pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 29 July 2014.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 7 November 2014 on the basis that the first named visa applicant (the visa applicant) did not meet cl.457.223(4)(da).
The review applicant, Wei Rong & Hui Rong Chen Partnership, appeared before the Tribunal on 23 July 2015 to give evidence and present arguments and was represented by Mr Wei Rong Chen. The Tribunal hearing was conducted with the assistance of interpreters in the Cantonese and English languages. One of the two interpreters was a TIS (Telephone Interpreter Service) interpreter.
The review applicant was represented in relation to the review by a registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The review applicant has nominated the visa applicant in relation to the occupation of Agricultural Technician (ANZSCO Code 311111).
The visa applicant stated in the visa application that she completed junior secondary education in China and passed an examination for award of the Agricultural Technical Title Certificate in China in December 2013 but the issue of the certificate is pending as a result of a policy change. The visa applicant stated that she is “well-trained in scientific vegetable growing” with many years of farming experience and she completed prerequisite formal technical training for Agricultural Technical Title Classification in December 2013. The visa applicant stated that she is skilled in scientific farming of a variety of leaf vegetables and she has more than four years experience in agricultural technical support and training to farmers.
The visa applicant stated that she worked as a self-employed vegetable grower from February 1993 to July 2014 growing vegetables and doing farm management, and she worked as an Agricultural Technician for Gaoyao Sheng Feng Farmers Cooperative from December 2009 to July 2014. The visa applicant stated that the base rate of pay per annum is $97,000 and the guaranteed annual earnings are $107,000.
Information in the file of the Department of Immigration (the Department) indicates that the visa applicant provided to the Department a number of documents including copies of the following:
·The visa applicant’s resumé;
·Certification dated 11 April 2014 from Gaoyao Agricultural Bureau about Gaoyao Sheng Feng Specialised Fruit and Vegetable Farmers Cooperative (Gaoyao Cooperative), about its members and training provided to the members;
·Certification that the visa applicant attended the examination in December 2013 for the agricultural farming techniques training organised by Gaoyao Agricultural Bureau;
·Photocopies of photographs;
·Certification by Gaoyao Cooperative that the visa applicant’s qualification is as an Agricultural Technician and she passed the examination for planting training and the Agricultural Technical Title Certificate is pending.
The visa applicant also provided a statement dated 26 February 2014 by Gaoyao Cooperative that there are 26 members appointed as Agricultural Technicians and they grasp the basic technical knowledge and have specialised planting techniques. “They can resolve planting, demonstration and production technical issues.” They have demonstrated technical results in their professional positions and they participated in technical training organised by the Gaoyao City Agricultural Bureau. Gaoyao Cooperative stated that it is law-abiding and due to the large number of members (120 formal members) it may be the case that there are discrepancies with telephone investigations. The verifications and responses made regarding these Agricultural Technicians are in accordance with the factual circumstances.
Information in the delegate’s decision indicates that the visa applicant’s reference from Gaoyao Cooperative was submitted to the Department’s overseas post (the post) in Guangzhou, China, for verification of authenticity. On 4 September 2014 advice was received from the post that the claims and duties in the work reference are inconsistent with the nominated occupation. The findings from the Guangzhou post are summarised as follows:
·The visa applicant was contacted on 4 September 2014 on her mobile phone and she stated that she mostly grows cabbage and green salad vegetables;
·The visa applicant stated that only she and her husband work on the farm and hire temporary helpers when it is busy;
·The visa applicant stated that she contracts the farm from the village committee but does not know with whom in the committee she signed the contract;
·The visa applicant was asked a series of questions about how to identify suitable land for growing vegetables, identify disease and insect pests, assist in developing methods of planting, fertilising, harvesting and processing crops and achieve optimum land usage. Although the visa applicant provided some related information, the information was found by the post to be very general and although she said that she does experiments with growing vegetables, she was unable to elaborate on what kind of instruments she uses to perform those tests;
·The post considered that based on the methodical manner in which the visa applicant provided the information, she was reading it off a pre-prepared document and her reaction to the post’s questions suggests that she is not familiar with her claimed duties;
·The post raised concern that the visa applicant appeared to have read the information from pre-prepared notes and the visa applicant added that her duties include training some farmers at the Agricultural Science Station as per the notice from the referee;
·The post noted that Departmental records show that the Gaoyao Cooperative and the referee have been associated with seven other employment referrals which have resulted in non-genuine outcomes in February and March 2014;
·Regarding her qualifications, the visa applicant stated that she undertook training in 2013 at the Gaoyao Agricultural Bureau and attended quarterly training for 10 classes per season. She has not obtained the formal qualification certificate due to a change of policy. In its experience the post has previously verified these types of certificates with the authorities and found that the vegetable growers can easily obtain these certificates by attending classes and sitting an open exam without actually being assessed against their skills, and therefore the post considers that this type of certificate is of limited value and therefore they placed limited weight on it;
·The visa applicant stated that she will perform the same type of role in Australia, including growing vegetables and managing related technology. The proposed employer, Wei Rong Chen, was her classmate in Gaoyao but she does not know the name of the vegetable farm she will work for in Sydney and has no idea how many farmers there are and the size of the farm;
·The post found that given the inconsistent information provided, it is unclear whether the visa applicant genuinely provides training to other members as claimed;
·The visa applicant obtained a qualification certificate on which limited weight should be placed;
·The visa applicant demonstrated limited knowledge regarding the nominated position/company and has limited language skills.
The delegate stated that, based on the above, the post was not satisfied that the visa applicant’s employment claims are genuine and was not satisfied that the visa applicant has the requisite skills or experience as defined in ANZSCO for the position of Agricultural Technician. The delegate gave strong weight to the non-genuine findings of the post in relation to the duties the visa applicant purports to be undertaking in her employment with Gaoyao Cooperative. The delegate was not satisfied that the visa applicant has demonstrated that she has the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation. The delegate found that the visa applicants did not meet the criteria for the grant of Subclass 457 visas.
At the time of lodging the application for review, the review applicant provided a copy of the delegate’s decision record. In the application for review, the review applicant stated that Wei Rong Chen is a proprietor of Wei Rong & Hui Rong Chen Partnership. A search of the Business Names Register shows that the business entity name for Australian Business Number 56 512 820 980 is Wei Rong & Hui Rong Chen. As Wei Rong Chen stated at the hearing that he is in partnership with his wife, Hui Rong Chen, the Tribunal is satisfied that Wei Rong Chen & Hui Rong Chen are partners in the business, Wei Rong & Hui Rong Chen Partnership, which is also known as Wei Rong & Hui Rong Chen.
On 30 June 2015 the Tribunal received a number of documents from the representative, including copies of a submission to the Department, organisation chart and letter dated 22 June 2015 from the review applicant to the visa applicant offering the visa applicant a full-time position as an Agricultural Technician and setting out the duties of the position.
In the submission to the Department dated 26 June 2015, the representative stated that the review applicant has nominated the visa applicant to fill the nominated position of Agricultural Technician. The visa applicant specialises in growing a variety of Asian vegetables. She is able to provide technical support in the overall farming practice with her many years of farming experience. The visa applicant has proven skills and hands-on experience in effective and sustainable farming practice which will help maintain and develop the sponsoring business.
The representative stated that there is no comparable existing Australian employee who performs similar job duties in the workplace. The terms and conditions and the base salary of $97,000 per annum are an individual arrangement between the employer and the nominee in consideration of the Australian market salary rate for the nominee’s skill level.
The representative stated that they made reference to the broader labour market from a website search including “Payscale”, “MyCareer” “etc” and the data obtained demonstrates that the proposed salary of $97,000 for the nominated position falls within the market salary range for this level occupation. The sponsor (the review applicant) submits that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian worker performing equivalent work in the same workplace. The sponsor confirms that the duties of the nominated position include a significant majority of the duties as listed in ANZSCO.
The representative stated that the sponsoring business has 16 acres of farmland but it has not been fully utilised due to labour shortage. The review applicant has experienced difficulties in employing highly skilled farming professionals locally. The review applicant would like to recruit agricultural professionals from overseas to help maintain and develop the business with input of the expertise in specialised vegetable cultivation.
On 20 July 2015 the Tribunal received from the representative a copy of the approval by the Department on 17 July 2015 of the nomination of an occupation relating to the nominee by a standard business sponsor, Wei Rong & Hui Rong Chen Partnership.
The Tribunal hearing
At the hearing the Tribunal informed the review applicant of the requirements of cl.457.223(4)(da). The Tribunal informed the review applicant that it will also look at whether the visa applicant meets cl.457.223(4)(d).
Mr Wei Rong Chen stated that he is in partnership with his wife, Hui Rong Chen, and they run a farm. He stated that he will give evidence on behalf of the partnership. He is a farmer. The farm is on 16 acres. The review applicant stated that the Department suspected that the visa applicant did not have the skills and he thinks that this was something to do with a telephone interview which was a problem. The review applicant stated that when the visa applicant answered during the telephone interview, she forgot but this does not mean that the visa applicant does not have the experience.
Mr Chen went back to China two years ago and met the visa applicant again. He learned that the visa applicant has worked on a farm for more than 20 years. Mr Chen has worked on a farm here since 1992. They talked about farming. Mr Chen went to the farm and saw that the vegetables that the visa applicant grows are very good. There is a lot of rain in China in April and the vegetables on many of the farms are affected by disease, like fungus and rotten and yellow leaves. However the visa applicant’s vegetables were very good.
The review applicant stated that the visa applicant does not spray the vegetables with chemicals. She told Mr Chen that firstly the soil has to be ploughed. She turns over the soil when the harvesting is finished. The soil is then allowed to dry so that there is more oxygen. Then the visa applicant checks the pH. If it is lower than 7 or 6.3 or less than 6.5, then she has to add lime. She also has to add fertiliser. She does composting and puts it together and lets it decay for a period of time before it is used as fertiliser. The visa applicant adds something biological but Mr Chen did not know how to describe it. It is free of pesticide. It is to kill the fungus and make the soil loose. Mr Chen stated that the visa applicant explained a lot of things to him. After that she turns over the soil, she ploughs and then plants the seeds. The visa applicant raises the beds so that the water drains when it rains. The seedlings are not too close because if they are too close they get disease and insects. She sprays water and checks the humidity. When the weather is dry, they have to spray in the morning. In the evening the surface gets dry and this helps the vegetables to grow. There is less fungal disease. She needs to check insects and if there are not many insects, she does not need to spray much. Because the plants are ready to pick, you cannot spray. She adds something biological.
The Tribunal asked the review applicant if this is what the visa applicant told him. Mr Chen stated that the visa applicant told him this when he asked her questions. The Tribunal brought to the review applicant's attention that he would already know a lot of these things. Mr Chen stated that, as an example, he asked her about oregano which gets a white insect under the ground and always eats the roots of the plant. The plant gets dry but does not die and it does not grow. The visa applicant is not growing oregano. The Tribunal asked the review applicant what the point of this evidence is. The review applicant stated that the insect is a white colour. There is only one chemical that can control it but it takes half a year for the toxins to go away. He supplies Woolworths. The visa applicant told Mr Chen that two things can be used. One way is to boil chilli to spray and it will kill the insect. Another way is to use bitter melon leaves mixed with water and lime. That way there is no poison. It is organic.
Mr Chen stated that there is a fungus on shallots and Chinese broccoli. When it goes, it leaves the plants burnt. It is hard to control. The visa applicant suggested using tea leaves to cure these pests. This is organic and not poison. She has a special method to harvest. She knows how to wash vegetables and how to make the vegetables very presentable for sale.
The Tribunal informed the review applicant that he is giving evidence about what someone else has told him. The Tribunal brought to the review applicant's attention that this is not really consistent with the report from the Australian Embassy in China. The Tribunal informed the review applicant that, based on the interview with the visa applicant, the visa applicant was found not to have the requisite skills and qualifications of an Agricultural Technician. The review applicant asked why this is so. The Tribunal informed the review applicant that the visa applicant was unable to answer certain questions and in response to other questions the visa applicant appeared to be reading out answers. Mr Chen stated that it is someone’s opinion. The Tribunal informed the review applicant that it has to be satisfied that the visa applicant has the skills, qualifications and employment background.
The Tribunal brought to the review applicant's attention that if someone has had 20 years experience in doing work, they should be able to speak about it in detail. The Tribunal informed the review applicant that he is giving evidence about what the visa applicant said to him. The review applicant stated that he saw the visa applicant’s farm with his own eyes and he saw what she has done. The size of the farm is 15 mu. It is equivalent to two and a half to three acres. It is just over one hectare. The Tribunal brought to the review applicant's attention that it is not a very big farm. The review applicant stated that the visa applicant told him that only the she and her husband work on the farm, but when it is busy, she employs some worker from the same village or the neighbouring village.
The Tribunal asked the review applicant if he has ever employed an Agricultural Technician in Australia. The review applicant stated that he has not. It is very hard to hire someone. The Tribunal asked the review applicant how he knows that it is hard to hire someone. The review applicant stated that he advertised in newspapers. The Tribunal asked the review applicant if he has the advertisements with him. The review applicant stated that he did not have them. He last advertised a couple of months ago. Before he offered the job to the visa applicant, he advertised. He has not kept copies of those advertisements. He advertised in Chinese newspapers but did not keep invoices for the advertisements. They went to the accountant and he cannot find them. He has too much paperwork. The Tribunal asked the review applicant if his accountant would have them. The review applicant stated that he is not sure because sometimes friends advertised for him and the payment was made by Internet banking. The Tribunal informed the review applicant that if he advertised for an Agricultural Technician it is reasonable to expect that they would have kept the advertisements or the invoices so that the review applicant could claim a tax deduction.

The review applicant stated that he asked a friend to send an email to post the advertisement and it was through the friend’s account that the expense for posting the advertisement is made. The Tribunal informed the review applicant that it has some concerns about this evidence. The Tribunal brought to the review applicant's attention that he indicated at the hearing that they advertised for an Agricultural Technician before they offered the employment to the visa applicant. The review applicant stated that that is right.
The review applicant stated that they offered the position to the visa applicant in about June 2013. The review applicant stated that they advertised for an Agricultural Technician before June 2013.
The Tribunal informed the review applicant that it would like to see the advertisements or the invoices from the newspapers showing that the advertisements were lodged. The Tribunal informed the review applicant that it also wanted to see whether the review applicant has claimed a tax deduction for those advertisements. The review applicant stated that he understood.
The Tribunal informed the review applicant that it had asked whether they had ever employed an Agricultural Technician on the farm. The review applicant stated that they had. Some came and said that they had very good experience but when they came, they did nothing. They did not work and only talked. The review applicant did not think that they could help him.
The Tribunal informed the review applicant that the average weekly earnings for an Agricultural Technician, according to the government’s Job Outlook website, are $950 per week. The review applicant stated that even labour workers will not do that. No-one wants to do this. Even inexperienced workers will not come to work for such a wage.
The Tribunal informed the review applicant that the range of earnings for an Agricultural Technician according to Job Outlook is from $950 a week to $1,152 per week but the review applicant is offering the visa applicant more than $40,000 above the average. The review applicant stated that he understands but nobody would take on the job. The Tribunal informed the review applicant that it has not seen any advertisements that they placed for an Agricultural Technician. The review applicant stated that his friend may have kept the email.
The review applicant stated that they did not put the wages being offered for an Agricultural Technician in the advertisement. If he can afford it, he will pay it. The person applying gives the review applicant the price first.
The Tribunal informed the review applicant that it has concerns whether the review applicant has artificially inflated the pay for the visa applicant in order to circumvent the English language proficiency requirements. The review applicant stated that he does not think so. He does not think the wage is unreasonable. The review applicant does not mind anything about English as long as the visa applicant works for him.
The review applicant stated that he thinks the visa applicant has the skills and background to help the review applicant in his work so he thinks it is worth doing. The visa applicant does not have very good English because she is not well educated. The review applicant stated that the visa applicant told him that she earns $80,000 to $100,000 and she has other income as well. These are her net earnings.
The Tribunal brought to the review applicant's attention that the certification from Gaoyao Cooperative indicates that the visa applicant’s monthly salary is RMB 1,200. The review applicant stated that he does not know how much money. He knows that she has other income apart from the farm.
The review applicant stated that his wife and he work on the farm and he has one employee. The employee is a farm hand. The review applicant mainly grows herbs. In winter he grows Chinese broccoli and bok choy. He is using 10 acres of the 16 acres to grow the crops. He does not have enough workers.
The Tribunal informed the review applicant that the visa applicant provided a certificate from the Gaoyao Sheng Feng Specialised Fruit and Vegetable Farmers Cooperative stating that she passed an examination and the certificate is pending. The Tribunal informed the review applicant that it was dated December 2013 and a year and a half has passed since then. The Tribunal informed the review applicant that it appears that the certificate has not been issued. The review applicant stated that he heard that there was a change of policy in mainland China and it is difficult. For the review applicant, the most important thing is the skill and not whether she has the certificate.
The Tribunal informed the review applicant that in determining whether the visa applicant has the skills, qualifications and employment background, the Tribunal looks at the ANZSCO Code which is an indicative code and sets out the skills and qualifications of occupations, including an Agricultural Technician. The Tribunal informed the review applicant that it considers that ANZSCO is an appropriate measure of the skills and qualifications of an Agricultural Technician. The Tribunal informed the review applicant that it sets out that the formal qualifications are an Associate Degree, an Advanced Diploma or a Diploma in Australia. The Tribunal informed the review applicant that there is no evidence that the visa applicant has any of those qualifications. The Tribunal informed the review applicant that ANZSCO states that at least 3 years of relevant experience may substitute for the formal qualifications.
The Tribunal informed the review applicant that it will be looking at this because the visa applicant does not have the formal qualifications. The Tribunal informed the review applicant that ANZSCO states that Agricultural Technicians perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. The Tribunal informed the review applicant that it has some concerns as to whether the visa applicant has been doing this. The review applicant confirmed that the visa applicant is running her farm.
The Tribunal informed the review applicant that an Agricultural Technician is a highly skilled position and the Tribunal may not be satisfied that the visa applicant is an Agricultural Technician.
The review applicant stated that the visa applicant is running her farm now and she has that skill. The Tribunal informed the review applicant that they have not nominated someone as a farmer. They have nominated someone as an Agricultural Technician. The Tribunal informed the review applicant that it has to decide whether the visa applicant has the skills, qualification and employment background to work as an Agricultural Technician. The review applicant stated that he feels that she has such skills and she grows very good vegetables. She has been involved in training and teaching others so she can be regarded as an Agricultural Technician.
The Tribunal informed the review applicant that in the interview with the Department, the visa applicant stated that she does experiments with vegetables but she was unable to elaborate about what sort of instruments she uses to perform those experiments. The review applicant stated that they use instruments to test the pH. The Tribunal brought to the review applicant's attention that this is what he is saying but the visa applicant did not say anything about instruments she uses. The Tribunal brought to the review applicant's attention that Agricultural Technicians perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. The Tribunal informed the review applicant that part of their duties is to perform tests and experiments and yet the visa applicant was not able to give evidence as to how she performed those tests and experiments.
The review applicant stated that he does not know what answers the visa applicant gave to the Department at the interview but as far as he knows she uses some sort of instruments to perform her duties.
The Tribunal asked the review applicant how he measures the pH. The review applicant stated that he buys a kit to measure the pH. The Tribunal informed the review applicant that the visa applicant appears not to have stated what she used to conduct experiments or tests. The review applicant stated that he does not have any comment because he does not know what instruments they use in China.
The review applicant stated that he told the visa applicant how big his farm was. He told her that the farm was 16 acres but she did not understand how big 16 acres is. He did not tell her how many workers there are on his farm because it depends on how busy the farm is.
The Tribunal informed the review applicant that the Australian Embassy in China has previously made attempts to verify certificates for the Gaoyao Cooperative and has found that vegetable growers can easily obtain these certificates by attending classes and sitting an open exam without actually being assessed against their skills, and the Australian Embassy considered that this type of certificate was of limited value and they placed limited weight on it. The review applicant stated that he does not know how easy or how hard it is to get the certificate. As far as he knows the visa applicant can operate the farm and perform the duties herself.
The Tribunal asked the review applicant if there was anything else he wanted to say about the skills, qualifications and employment background of the visa applicant. The review applicant stated that the visa applicant was born and raised on a farm and she has worked on a farm from the time she was little. After she graduated she worked on a farm for more than twenty years. She was successful in doing that and he is very confident that she is able to manage the farm for him. The Tribunal asked the review applicant if the visa applicant’s position on his farm will be as a farm manager. The review applicant stated that she will have a technical role and will manage everything. She can manage the farm for him and he can then do more deliveries, get more orders and expand his business. The farm has 16 acres but he only uses half the land at the moment. He owns 11 acres and leases 5 acres. If the visa applicant looks after the farm, he can spend more time and expand his business. He may look at planting some Chinese vegetables here so that they do not have to import them from China.
The review applicant stated that the visa applicant knows how to grow organically so that less fertiliser can be used. He wants to make the farm bigger but he has no workers and no experienced people to help him manage the farm.
The review applicant stated that the visa applicant will help him with planting and ploughing as this is part of the technical role. The Tribunal asked the review applicant who will be doing the labouring work on the farm if he will be doing other work such as taking the orders and doing deliveries. The review applicant stated that he does that himself too. He will also employ more labour. He will ask the visa applicant to train the workers to do this job. If the visa applicant can train the workers, he will have more time to do the deliveries.
The Tribunal brought to the review applicant's attention that the role of an Agricultural Technician is a highly skilled position. The review applicant stated that he thinks that the visa applicant is capable of doing this. He thinks she is doing a better job than he is.
The Tribunal informed the review applicant that it is also looking at whether the visa applicant’s intention to perform the occupation is genuine and whether the position associated with the nominated occupation is genuine. The Tribunal informed the review applicant that it has some concerns because of the type of work that the visa applicant has been doing. The review applicant stated that the visa applicant is outgoing and very good at socialising. Her technical ability is important but also her nature and personality are important. Even though he will be paying this amount for her wages, he still thinks it is good value for money. He wishes that she can come here so that his dream of expansion can be realised. If he has people to manage his farm, he wants to make a bigger business. Woolworths always asks him to give them more.
The Tribunal informed the review applicant that it has concerns as to whether the position is in fact an Agricultural Technician. The review applicant stated that the position is an Agricultural Technician.
The review applicant stated that he advertised on the Internet. The review applicant stated that he is not sure if his friend kept the email. The Tribunal informed the review applicant that it may not accept that he advertised for an Agricultural Technician before offering the job to the visa applicant unless the Tribunal sees documentary evidence of it. The review applicant stated that he does not remember what day the advertisement appeared in the newspaper. It is hard for him to get it. The Tribunal informed the review applicant that if he put in an advertisement and paid for it, there might be an invoice or an income tax return with a claim for advertising being claimed as a tax deduction.
The review applicant stated that they did not send him an invoice. They just transferred the money from the bank account and they put in the advertisement. His friend paid from his bank account. It was transferred by Bpay or from the account.
The review applicant stated that they advertised for positions but did not specifically ask for an Agricultural Technician in the advertisement. They said they were looking for farm workers who have ability. They are looking for Agricultural Technicians and farm workers depending on the role they perform. The review applicant stated that they wanted someone to work as an Agricultural Technician but in the advertisement they did not specifically say they were looking for an Agricultural Technician. In the advertisement he just put ‘farm hand’. The Tribunal informed the review applicant that there is a big difference between a farm hand and Agricultural Technician. The Tribunal brought to the review applicant's attention that it had asked him whether he had ever employed an Agricultural Technician in Australia and he said that it was very hard to hire an Agricultural Technician and he had tried many times. The review applicant stated that this is true. The Tribunal informed the review applicant that he said that they advertised in the newspapers. The review applicant stated that he advertised in the paper but he did not say that he was looking for an Agricultural Technician. People who made enquiries said they could do technical work.
The Tribunal brought to the review applicant's attention that he did not advertise for an Agricultural Technician and he did not set out the pay that would be given to an Agricultural Technician. The review applicant stated that they do not put the wage when they advertise. When they advertise, there is a limit to how many words they can put. That is why they say they are looking for people to work on the farm and if people call and say they have technical skills, they are welcome. They pay workers according to their ability. They need farm hands and technicians. The job they advertised was for farm workers which include Agricultural Technicians and farm labourers.
The Tribunal allowed the review applicant until 30 July 2015 to provide further evidence.
On 30 July 2015 the Tribunal received from the representative a number of documents including copies of an email (in a language other than English), bank statements from 24 March 2009 to 21 October 2011 showing payments to Australian Chinese News Sydney and Sing Tao newspapers Sydney and Australian Chinese Sydney. The representative also provided a letter dated 29 July 2015 from the review applicant who stated that he has been posting job advertisements with Australian Chinese Daily and Sing Tao Daily Australia “on a continuous basis over the past years.” He has not kept newspaper clippings and the newspapers were unable to provide him with the record of these advertisements. The content of the advertisements has been identical. The review applicant advertised for “Farm workers”. The advertisements did not specify a position title but he intends to try to engage people with different levels of skill and the pay will vary according to the skill and ability subject to negotiation. In the last 10 years, there has been nobody with the technical skill comparable to the one he intends to sponsor. They decided to engage the nominee from China. This is a response to the business reality. The review applicant stated that he did not place any advertisements in 2012. There were further advertisements placed in November 2014 with the assistance of his friend. The review applicant does not have the receipts as he did not reimburse his friend. He has emails from his friend for the placement of the advertisements. The review applicant stated that the community may have a preconception that they are low skilled and insignificant. However, Mr Chen and his wife are passionate about their work. They come from a rural background and he was thrilled to see healthy vegetables and good farming practices when he saw the superb ability of the nominee.
The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(da) and (d).
Skills, qualification and employment background of the applicant
Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background that the Minister (and now the Tribunal) considers necessary to perform the tasks of the nominated occupation. In this case the nominated occupation is Agricultural Technician.
In determining whether an applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal is guided by the skill level as set out in ANZSCO (Australian and New Zealand Standard Classification of Occupations) which is an indicative guide. The Tribunal finds that ANZSCO is an appropriate measure of the skills and qualifications of an Agricultural Technician (ANZSCO 311111).
The occupation of Agricultural Technician comes within the Unit Group of Agricultural Technicians (3111). ANZSCO states that most occupations in the unit group of Agricultural Technicians have a level of skill commensurate with the qualifications and experience outlined below. The qualifications in Australia for an Agricultural Technician are an Associate Degree, Advanced Diploma or Diploma. ANZSCO also states that at least three years of relevant experience may substitute for the formal qualifications listed above and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. (An extract from ANZSCO is attached.)
There is no evidence before the Tribunal that the visa applicant has an Associate Degree, Advanced Diploma or Diploma. The visa applicant provided to the Department a certification dated December 2013 stating that she attended the examination in December 2013 for the agricultural farming techniques training organised by Gaoyao Agricultural Bureau. The visa applicant also provided a certification by Gaoyao Cooperative that the visa applicant’s qualification is as an Agricultural Technician and she passed the examination for planting training and the Agricultural Technical Title Certificate is pending. In a telephone interview held with the visa applicant by the Department on 4 September 2014, the visa applicant stated that she undertook training in 2013 at the Gaoyao Agricultural Bureau and attended quarterly training for 10 classes per season and she has not obtained the formal qualification certificate due to a change of policy. The visa applicant stated in the visa application that she passed an examination for award of the Agricultural Technical Title Certificate in China in December 2013 but the issue of the certificate is pending as a result of the policy change. The Tribunal has not seen the Agricultural Technical Title Certificate. The review applicant told the Tribunal that he had heard that there was a change of policy in mainland China.

The Tribunal is not satisfied that the visa applicant achieved an Agricultural Technical Title Certificate as there is no evidence that it has been issued. However, even if the visa applicant had achieved this qualification, the Tribunal is not satisfied that it is equivalent to an Associate Degree, Advanced Diploma or Diploma. The Tribunal is satisfied that the visa applicant does not have the formal qualifications of an Associate Degree, Advanced Diploma or Diploma to perform the nominated occupation of Agricultural Technician.
ANZSCO states that at least three years of relevant experience may substitute for the formal qualifications and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. The visa applicant stated that she worked as a self-employed vegetable grower from February 1993 to July 2014 growing vegetables and doing farm management and she worked as an Agricultural Technician with Gaoyao Sheng Feng Farmers Cooperative from December 2009 to July 2014. The visa applicant stated that she is “well-trained in scientific vegetable growing” with many years of farming experience and she completed prerequisite formal technical training for agricultural technical title classification in December 2013. The visa applicant stated that she is skilled in scientific farming of a variety of leaf vegetables and she has more than four years experience in agricultural technical support and training to farmers.
The Tribunal has significant concerns as to whether the visa applicant has relevant experience as an Agricultural Technician. The visa applicant has claimed to have worked as an Agricultural Technician for four years and eight months. Whilst there is evidence that the visa applicant and her husband grow vegetables on a small farm of about one hectare, the Tribunal is not satisfied that the visa applicant has performed the majority of tasks of an Agricultural Technician at the skill level described in ANZSCO. The position of Agricultural Technician is a high level position with Agricultural Technicians performing tests and experiments, and providing technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.
The review applicant gave evidence at the hearing about the work that the visa applicant carries out on her farm. However, the Department’s overseas post in Guangzhou conducted a telephone interview with the visa applicant and concluded that the claims and duties in the work reference are inconsistent with the nominated occupation. The post stated that the visa applicant was asked a series of questions about how to identify suitable land for growing vegetables, identify disease and insect pests, and assist in developing methods of planting, fertilising, harvesting and processing crops and how to achieve optimum land usage but although the visa applicant provided some related information, the information was very general and although the visa applicant said that she does experiments with growing vegetables, she was unable to elaborate on what kind of instruments she uses to perform those tests.
Whilst the review applicant gave evidence at the hearing about the visa applicant testing the pH of the soil and the way she deals with fungal infestations and other plant diseases, the Tribunal is not satisfied that the visa applicant gave such information or provided details about the work she carries out when questioned by the post. The post also considered that, based on the methodical manner in which the visa applicant provided the information during the interview, she was reading it off a pre-prepared document and her reaction to the post’s questions suggests that she is not familiar with her claimed duties. The visa applicant told the post that she trains some farmers at the Agricultural Science Station as per the notice from the referee.
The Tribunal has had regard to the evidence of the review applicant about the visa applicant’s skills and the visa applicant’s evidence provided to the Department, but the Tribunal is not satisfied that the visa applicant’s experience is at the level of an Agricultural Technician. Whilst the Tribunal accepts that the visa applicant has many years of experience running her own small farm, the Tribunal does not accept that she is an Agricultural Technician. The review applicant has not advertised for an Agricultural Technician. Although the review applicant claimed that he advertised for an Agricultural Technician, he did not provide any documentary evidence of this and in any case he gave evidence that the advertisements did not mention that the position was that of an Agricultural Technician. In the letter provided to the Tribunal after the hearing, the review applicant stated that the content of the advertisements is identical and they advertised for farm workers.
Although the certification by the Gaoyao Cooperative indicates that the visa applicant is an Agricultural Technician, the Tribunal is not satisfied that she is, in fact, an Agricultural Technician. The Tribunal has had regard to the letter from the Gaoyao Cooperative asserting that the visa applicant is an Agricultural Technician. However, because the visa applicant’s answers to the post were very general when she was asked a series of questions about how to identify suitable land for growing vegetables, identify disease and insect pests, and assist in developing methods of planting, fertilising, harvesting and processing crops and how to achieve optimum land usage and because she was unable to elaborate on what kind of instruments she uses to perform those tests, the Tribunal does not accept that she is an Agricultural Technician.
If the visa applicant was an Agricultural Technician, the Tribunal considers that it is reasonable to expect that she would be knowledgeable about tests and experiments that she has performed and give detailed evidence of the tasks she performed as an Agricultural Technician.
The Tribunal has concerns about the remuneration that will be paid to the visa applicant if she is granted a Subclass 457 visa. The wages offered to the visa applicant for the position of Agricultural Technician are high for a position of this type and they are almost twice the median according to the website, Job Outlook, which indicates that the average weekly earnings before tax for a full-time Agricultural Technician are $950 per week. This is less than $50,000 a year (
The Tribunal informed the review applicant at the hearing that the range of earnings for an Agricultural Technician according to Job Outlook is from $950 a week to $1,152 per week but the review applicant is offering the visa applicant more than $40,000 above the average. The review applicant’s evidence was that he understands but nobody would take on the job and even labour workers will not do work for $950 per week. The review applicant stated that even inexperienced workers will not come to work for such a wage.
The evidence of the review applicant is that the visa applicant told him that her net earnings are $80,000 to $100,000 per annum and she has other income as well. However, the certification from Gaoyao Cooperative indicates that the visa applicant’s monthly salary is RMB 1,200 (equivalent to AUD $258.36). The review applicant stated that he knows that she has other income apart from the farm. If the visa applicant has other income besides the $258.36 per month, no documentary evidence of this has been provided.
The Tribunal has concerns that the level of salary offered has been chosen to circumvent the requirement for the visa applicant to have a certain level of English language proficiency. The review applicant stated that he does not think the wage is unreasonable. The review applicant stated that he does not mind anything about her English ability as long as the visa applicant works for him. The review applicant thinks that the visa applicant has the skills and the background to help the review applicant in his work so he thinks it is worth doing it.
The Tribunal has considered this evidence but is not satisfied that the visa applicant has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of the nominated occupation of Agricultural Technician.
The review applicant claimed that it is difficult to find an Agricultural Technician in Australia. Although the review applicant claimed that they advertised for an Agricultural Technician, after further questioning at the hearing, the review applicant admitted that they did not identify the occupation and only advertised for farm workers. The review applicant confirmed in his letter to the Tribunal after the hearing that they advertised for farm workers.
The Tribunal is not satisfied that the visa applicant is qualified as an Agricultural Technician based on her employment, training and experience.
The Tribunal has considered the statement of the visa applicant to the post and is not satisfied that the visa applicant performs tests and experiments, and provides technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. The Tribunal is not satisfied on the evidence that the visa applicant provided technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. Although the visa applicant stated that she has performed tests and experiments during the interview with the post, she was unable to identify the instruments she used. The Tribunal is not satisfied that she performs tests and experiments.
The Tribunal is not satisfied that the visa applicant is skilled to carry out the role of an Agricultural Technician. The role is to perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing. The Tribunal finds that the visa applicant is a farmer on a small farm of about one hectare. Whilst the review applicant stated that the visa applicant will be involved in training workers in vegetable growing and the visa applicant told the post that her duties include training some farmers at the Agricultural Science Station, the Tribunal is not satisfied that she has the skills of an Agricultural Technician.
The Tribunal does not accept that the visa applicant worked as an Agricultural Technician with the Gaoyao Cooperative from December 2009 to July 2014. The Tribunal accepts that the visa applicant has been self-employed as a vegetable grower for many years but is not satisfied that her experience is at the level of an Agricultural Technician.
The Tribunal is not satisfied, on the evidence, that the visa applicant has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of the nominated occupation.
The Tribunal has considered the claims made by the visa applicant in the visa application that she is well-trained in scientific vegetable growing. The Tribunal is not satisfied that the visa applicant’s work at Gaoyao Cooperative demonstrates that she has the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation. The Tribunal places little weight on the certification by Gaoyao Cooperative in light of the failure of the Gaoyao Cooperative to issue the relevant certificate and the conclusion of the post as to the skills of the visa applicant and also the evidence of the review applicant.
The Tribunal has considered the evidence regarding the visa applicant’s skills, qualifications and employment background as a whole. The Tribunal is not satisfied, based on the evidence, that the visa applicant has the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation.
For these reasons the visa applicant does not satisfy the requirements of cl.457.223(4)(da).
Genuine intention
Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.
The Tribunal has found that the visa applicant does not have the skills, qualifications and employment background to perform the occupation of Agricultural Technician. Therefore the Tribunal is not satisfied that the visa applicant’s intention to perform the occupation of Agricultural Technician is genuine.
For these reasons the requirements of cl.457.223(4)(d)(i) are not met. Therefore the visa applicant does meet cl.457.223(4)(d).
The Tribunal has found that the visa applicant does not satisfy the requirements of cl.457.223(4)(da) and cl.457.223(4)(d). The visa applicant is therefore not entitled to the grant of a Subclass 457 visa.
There is no evidence before the Tribunal that the second named visa applicant meets the primary criteria for the grant of the visa. The second named visa applicant does not meet cl.457.321 which has to be satisfied at time of decision. The second named visa applicant is not a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.
Dione Dimitriadis
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT) AND ANZSCO EXTRACT
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)if:
(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant; and
(iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 3111 AGRICULTURAL TECHNICIANS

AGRICULTURAL TECHNICIANS perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oexamining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies
oassisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage
oidentifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control
oanalysing produce to set and maintain standards of quality
oinspecting livestock to gauge the effectiveness of feed formulae
oassisting in controlled breeding experiments to develop improved crop and livestock strains
oarranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use
ocollecting and collating data for research
oplanning slaughtering, harvesting and other aspects of production processes
omay advise producers on farming techniques and management

Occupation:
311111 Agricultural Technician

311111 AGRICULTURAL TECHNICIAN

Alternative Title:
Agricultural Technical Officer

Performs tests and experiments, and provides technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.
Skill Level: 2
Specialisations:
Agriculture Laboratory Technician
Artificial Insemination Technical Officer
Dairy Technician
Field Crop Technical Officer
Herd Tester
Horticultural Technical Officer

[2015] AATA 3908

23 December 2015

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